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Judgment
Biren Vaishnav, J
Heard Mr.Anand Sharma learned advocate for the appellant and Mr.H.S.Munshaw learned advocate for the respondent.
This appeal is filed under clause 15 of the Letters Patent challenging the decision dated 06.03.2013 passed by the learned Single Judge.
Briefly stated, an application seeking approval of the order of dismissal was filed by the employer under Section 33(2)(b) of the Industrial Disputes Act before the Industrial Tribunal.
It appears that the Tribunal for the reasons which we need not go into at this stage, rejected the application by an order dated 12.08.2008. The Tribunal did not grant approval to the employer to execute the order of dismissal dated 23.09.2003.
On a challenge by the Corporation, learned Single Judge of this Court while dismissing the petition, held as under:
“4. It is required to be noted that the respondent-workman has already attained the age of superannuation in the year 2008. Therefore, there is as such no question of reinstatement of the respondent-workman. Further, when present petition came up for admission hearing before this Court (Coram : S.R. Brahmbhatt, J.) on August 07, 2009, this Court passed the following order :
“Heard learned counsel for the parties. Rule. By way of interim relief, the award impugned shall remain stayed till final disposal of the petition. In the meantime, if as per prevalent rules and regulations of the petitioner, retiral dues are permissible, the same shall be given to the respondent.”
On perusal of the aforesaid order and the facts and circumstances of the case, it transpires that even this Court while admitting the matter has passed an order qua granting retiral dues to the respondent if he is entitled to. In that view of the matter, since the respondent has already attained the age of superannuation, he may not be entitled to any monetary benefits, but he will be entitled to all the admissible retiral dues and he is required to be paid the same by treating him continued in service till the date on which he attained the age of superannuation.
In view of aforesaid, I am of the opinion that the view taken by the Industrial Tribunal is just and proper. The Industrial Tribunal has assigned cogent and convincing reasons for arriving at the conclusion. I do not find any illegality much less any perversity in the findings recorded by the Industrial Tribunal. No case is made out to interfere with the findings recorded by the Industrial Tribunal. Hence, present petition deserves to be dismissed.
For the foregoing reasons, present petition fails and is, accordingly, dismissed.
It is, however, made clear that in view of settled legal position, the respondent-workman will not be entitled to any back wages relying upon the principle 'no work, no pay'. Since the respondent has already attained the age of superannuation, the petitioner is directed to pay all the retirement dues to the respondent treating him continued in service. The monetary benefits shall be paid to the respondent within a period of eight months from today. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.”
Mr.Anand Sharma learned counsel appearing for the respondent-workman would submit that once the order of dismissal dated 23.09.2003 failed the test inasmuch as, the Tribunal did not grant the permission to execute the order, the learned Single Judge ought not to have denied the petitioner the benefits of back-wages on the principle of ‘no work, no pay’.
In support of his submission, Mr.Sharma would rely on the decision of the Supreme Court in case of M.D. Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam rendered in Appeal (Civil) No.3593 of 2001. Reading from the judgement, he would submit that if relationship of the employer and employee is not legally terminated till the approval of discharge or dismissal is given, consequential benefits must follow.
Having considered the submissions made by the learned counsel for the respective parties and from the perusal of the Tribunal’s order which would indicate that while rejecting the application for approval, it went into the merits of the departmental proceedings. On a challenge by the employer before the learned Single Judge of this Court, from the reproduction of the relevant paragraphs herein above, it would indicate that the Court, in exercise of powers under Articles 226 and 227 of the Constitution of India, thought it fit to mould the relief in light of the fact that the petitioner had retired in the year 2008 and when the petition was taken up for hearing, five years has already been passed by and therefore the learned Single Judge has granted only the terminal benefits denying the benefits of back-wages on the principle of ‘no work no pay’.
No error can be found in the order of the learned Single Judge.
10.In view of the above, the appeal is dismissed.